Exhibit
10.1


 


FOURTH AMENDMENT TO CREDIT AGREEMENT


 


This Fourth Amendment to Credit Agreement (this “Fourth
Amendment”) is made as of this      day of October, 2009
by and among:


 


THE CHILDREN’S PLACE RETAIL
STORES, INC., a Delaware corporation, for itself and as agent (in such
capacity, the “Lead Borrower”) for the other Borrowers party hereto;


 


the BORROWERS party hereto;


 


the GUARANTORS party hereto;


 


the LENDERS party hereto;
and


 


WELLS FARGO RETAIL FINANCE, LLC, as Administrative
Agent, Collateral Agent, and Swing Line Lender.


 


BACKGROUND:


 


Reference is made to that certain Credit Agreement (as
amended, modified, supplemented or restated and in effect from time to time,
the “Credit Agreement”) dated as of July 31, 2008 by and among (i) the
Borrowers, (ii) the Guarantors, (iii) the Lenders, and (iv) Wells
Fargo Retail Finance, LLC, as Administrative Agent, Collateral Agent, and Swing
Line Lender.  The Loan Parties, the
Agents, and the Lenders desire to amend certain terms and conditions of the
Credit Agreement as set forth herein.  In
addition, the Lead Borrower has notified the Administrative Agent that Twin
Brook is to be liquidated.  Accordingly,
it is hereby agreed as follows:


 


1.             Definitions. 
All capitalized terms used herein and not otherwise defined shall have
the same meaning herein as in the Credit Agreement.


 


2.             Amendment to Article I.  The
definition of Permitted Indebtedness is hereby amended by deleting the figure “$5,000,000” contained in subparagraph (d) thereof, and
replacing it with the figure “$25,000,000”.


 


3.             Amendment to Article VII.  The
provisions of Section 7.18 are hereby deleted in their entirety, and the
following is inserted in their place:


 


7.18  Foreign Transfers


 


Permit
the Loan Parties located within the United States to make intercompany
transfers outside the ordinary course of business to their Affiliates in
Canada, Asia and/or Puerto Rico, except that, so long as (a) no Default
shall have occurred and be continuing prior to or immediately after giving
effect to any transfer described below or would result therefrom and


 


1

















 


(b) prior
to, and on a projected pro forma basis for the six months immediately
following, and after giving effect to, any transfer described below, Excess Availability
will be greater than or equal to $50,000,000, the Loan Parties located within
the United States may:


 


(i)  Make intercompany transfers outside the
ordinary course of business of not more than $5,000,000 per Fiscal Year in the
aggregate to their Affiliates in Canada;


 


(ii)  Make intercompany transfers outside the
ordinary course of business of not more than $5,000,000 per Fiscal Year to
their Affiliates in Asia; and


 


(iii)  Make intercompany transfers outside
the ordinary course of business of not more than $2,500,000 per Fiscal Year to
their Affiliates in Puerto Rico.


 


4.             In accordance with the provisions of Section 7.04(c) of
the Credit Agreement:


 


(a)           The Lead Borrower hereby warrants and
represents to the Agents and the Lenders, and hereby confirms that:


 


(i)         All of the assets of Twin Brook (other
than any cash to be paid in connection with the termination of outstanding
insurance policies of Twin Brook) will be distributed to the Lead Borrower, all
of the non-insurance liabilities and obligations of Twin Brook will be assumed
by the Lead Borrower, and Twin Brook will be maintained as a “shell entity”
which will not be permitted to have assets or liabilities or transact business;


 


(ii)        The Lead Borrower shall provide prompt written notice
to the Collateral Agent on the date that the foregoing actions occur (the “Effective
Date”);


 


(iii)       The Lead Borrower warrants and represents
that the liabilities and obligations to be assumed from Twin Brook shall not
exceed $750,000 each year;


 


(iv)       Upon the Effective Date:


 


(1)           All of the
former assets of Twin Brook transferred to the Lead Borrower, including,
without limitation, the equity interests in Services Company, are and shall be
subject to the first, perfected lien and security interest granted to the
Collateral Agent for the benefit of the Credit Parties pursuant to the Security
Agreement; and


 


2

















 


(2)           The Lead
Borrower shall execute and deliver to the Collateral Agent all documents,
instruments, and agreements that the Collateral Agent may reasonably require in
order to ensure that such lien and security interest granted to the Collateral
Agent attaches and is perfected, including without limitation, a pledge
agreement covering the equity interests in Services Company substantially in
the form annexed hereto marked Exhibit “A”, subject to such changes as are
mutually agreed to by the Lead Borrower and the Collateral Agent, along with any
documentation evidencing the same.


 


(b)           The Agents and the Lenders hereby confirm
that upon the Effective Date and satisfactory completion of the requirements
set forth in subparagraph A(iv)(2) above, Twin Brook will automatically
cease to be a Guarantor under the Credit Agreement.


 


5.             Ratification of Loan Documents; Waiver of
Claims.


 


(a)           Except as otherwise expressly provided
herein, all terms and conditions of the Credit Agreement and the other Loan
Documents remain in full force and effect. 
The Loan Parties hereby ratify, confirm, and reaffirm that all
representations and warranties of the Loan Parties contained in the Credit
Agreement or any other Loan Document are true and correct in all material
respects on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier
date.


 


(b)           Each of the Loan Parties hereby
acknowledges and agrees that there is no basis or set of facts on the basis of which
any amount (or any portion thereof) owed by the Loan Parties under the Loan
Documents could be reduced, offset, waived, or forgiven, by rescission or
otherwise; nor is there any claim, counterclaim, offset, or defense (or other
right, remedy, or basis having a similar effect) available to the Loan Parties
with regard thereto; nor is there any basis on which the terms and conditions
of any of the Obligations could be claimed to be other than as stated on the
written instruments which evidence such Obligations.


 


(c)           Each of the Loan Parties hereby
acknowledges and agrees that it has no offsets, defenses, claims, or
counterclaims against the Agents or any Lender, or any of their respective
affiliates, predecessors, successors, or assigns, or any of their respective
officers, directors, employees, attorneys, or representatives, with respect to
the Obligations, or otherwise, and that if the any Loan Party now has, or ever
did have, any offsets, defenses, claims, or counterclaims against the Agents or
any Lender, or their respective affiliates, predecessors, successors, or
assigns,


 


3

















 


or their respective officers, directors, employees, attorneys, or
representatives, whether known or unknown, at law or in equity, from the
beginning of the world through this date and through the time of execution of
this Fourth Amendment, all of them are hereby expressly WAIVED, and the each of the Loan Parties
hereby RELEASES the Agents and
each Lender and their respective officers, directors, employees, attorneys,
representatives, affiliates, predecessors, successors, and assigns from any
liability therefor.


 


6.             Conditions to Effectiveness.  This
Fourth Amendment shall not be effective until each of the following conditions
precedent has been fulfilled to the reasonable satisfaction of the
Administrative Agent:


 


(a)           The Administrative Agent shall have
received counterparts of this Fourth Amendment duly executed and delivered by each
of the parties hereto.


 


(b)           All corporate and shareholder action on
the part of the Loan Parties necessary for the valid execution, delivery and
performance by the Loan Parties of this Fourth Amendment shall have been duly
and effectively taken and evidence thereof reasonably satisfactory to the
Administrative Agent shall have been provided to the Administrative Agent.


 


(c)           After giving effect to this Fourth
Amendment, no Default or Event of Default shall have occurred and be continuing.


 


7.             Miscellaneous.


 


(a)           This Fourth Amendment may be executed in
several counterparts and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all of which together
shall constitute one instrument. 
Delivery of an executed counterpart of a signature page to this Fourth
Amendment by telecopy or other electronic transmission shall be effective as
delivery of a manually executed counterpart of this Fourth Amendment.


 


(b)           This Fourth Amendment expresses the
entire understanding of the parties with respect to the transactions
contemplated hereby.  No prior
negotiations or discussions shall limit, modify, or otherwise affect the
provisions hereof.


 


(c)           Any determination that any provision of
this Fourth Amendment or any application hereof is invalid, illegal or
unenforceable in any respect and in any instance shall not affect the validity,
legality, or enforceability of such provision in any other instance, or the
validity, legality, or enforceability of any other provisions of this Fourth
Amendment.


 


(d)           The Loan Parties represent and warrant
that they have consulted with independent legal counsel of their selection in
connection with this Fourth Amendment and are


 


4

















 


not relying on any representations or warranties of the Agents or the
Lenders or their counsel in entering into this Fourth Amendment.


 


(e)           The Loan Parties shall pay all reasonable
costs and expenses of the Agents (including, without limitation, reasonable
attorneys’ fees) in connection with the preparation, negotiation, execution,
and delivery of this Fourth Amendment and related documents.  The Loan Parties hereby acknowledge and agree
that the Administrative Agent may charge the Loan Account to pay such costs and
expenses.


 


(f)            THIS FOURTH AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


[Signature Pages Follow]


 


5

















 


IN WITNESS WHEREOF, the parties have hereunto caused
this Fourth Amendment to be executed and their seals to be hereto affixed as of
the date first above written.


 


	
   

  	
   

  	
  THE
  CHILDREN’S PLACE RETAIL STORES, INC., as Lead Borrower and as
  a Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Susan J. Riley

  
	
   

  	
   

  	
  Name:

  	
  Susan
  J. Riley

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President, Finance & Administration

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE
  CHILDREN’S PLACE SERVICES COMPANY, LLC, as a Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Susan J. Riley

  
	
   

  	
   

  	
  Name:

  	
  Susan
  J. Riley

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE
  CHILDRENSPLACE.COM, INC., as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Adrienne Urban

  
	
   

  	
   

  	
  Name:

  	
  Adrienne
  Urban

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE
  CHILDREN’S PLACE (VIRGINIA), LLC, as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Susan J. Riley

  
	
   

  	
   

  	
  Name:

  	
  Susan
  J. Riley

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


S-1

















 


	
   

  	
   

  	
  THE
  CHILDREN’S PLACE CANADA HOLDINGS, INC., as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Susan J. Riley

  
	
   

  	
   

  	
  Name:

  	
  Susan
  J. Riley

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TWIN
  BROOK INSURANCE COMPANY, INC., as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Susan J. Riley

  
	
   

  	
   

  	
  Name:

  	
  Susan
  J. Riley

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


S-2

















 


	
   

  	
   

  	
  WELLS
  FARGO RETAIL FINANCE, LLC, as Administrative Agent,
  Collateral Agent, Swingline Lender and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Jennifer Bianchette

  
	
   

  	
   

  	
  Name:

  	
  Jennifer
  Bianchette

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK
  OF AMERICA, N.A., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/  Jeff Ryan

  
	
   

  	
   

  	
  Name:
  

  	
  Jeff
  Ryan

  
	
   

  	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HSBC
  BUSINESS CREDIT (USA) INC., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


S-3